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Justice Dept. watchdog never probed judges' NSA concerns

The Justice Department's internal ethics watchdog says it never investigated judges' repeated complaints that the government had misled them about the scope of the NSA's secret surveillance of Americans' phone calls.

The Justice Department's internal ethics watchdog says it never investigated repeated complaints by federal judges that the government had misled them about the NSA's secret surveillance of Americans' phone calls and Internet communications.

Two judges on the court that oversees the spying programs separately rebuked federal officials in top-secret court orders for misrepresenting how the NSA was harvesting and analyzing communication records. In a sharply worded 2009 order, one of the judges, Reggie Walton, went so far as to suggest that he could hold national security officials in contempt or refer their conduct to outside investigators.

The Justice Department's Office of Professional Responsibility routinely probes judges' allegations that the department's lawyers may have violated ethics rules that prohibit attorneys from misleading courts. Still, OPR said in response to a Freedom of Information Act request by USA TODAY that it had no record of ever having investigated — or even being made aware of — the scathing and, at the time, classified, critiques from the Foreign Intelligence Surveillance Court between 2009 and 2011.

Those opinions were sufficiently critical that OPR should have reviewed the situation, even if only to assure the department that its lawyers were not to blame, former OPR attorney Leslie Griffin said. "There's enough in the opinions that it should trigger some level of inquiry," she said.

The opinions by the Foreign Intelligence Surveillance Court were declassified this summer in the midst of a series of disclosures by former NSA contractor Edward Snowden that opened a remarkable window into the government's vast electronic surveillance operations.

Justice spokesman Brian Fallon said in a statement Thursday that the department's lawyers "did exactly what they should have done. They promptly and appropriately reported compliance issues upon their discovery within the executive branch as well as to the Court and Congress. The court's opinions and facts demonstrate that the department attorneys' representation before the court met the highest professional standards."

The opinions do not directly accuse Justice Department lawyers of wrongdoing, and do not identify the officials who judges thought misled them. Requests for surveillance orders are typically prepared by the NSA, with help from a small circle of lawyers in the Justice Department's National Security Division. Declassified court records show that on at least two occasions it was DOJ's National Security Division that first alerted the surveillance court that the government had provided incorrect information about the extent of NSA surveillance. Since then, the court's judges have asked Justice lawyers to play a bigger role in overseeing the NSA's compliance with surveillance laws.

"These were not abuses of surveillance authority, and the errors were not made intentionally," said Carrie Cordero, a lawyer who worked in the National Security Division in 2009. "This was lawyers translating highly technical information."

Still, privacy advocates said the misrepresentations — and the fact that the Justice Department did not fully investigate them — suggests a need for additional oversight. "What's surprising to me is that the FISA Court judges remain surprised" about having been misled, ACLU privacy lawyer Mike German said.

Justice Department rules require that its lawyers report "any indication by a judge or magistrate judge that the court is taking under consideration an allegation of professional misconduct" to their supervisors, who must in turn notify the Office of Professional Responsibility. The office traditionally treats rebukes by federal judges especially seriously, and OPR investigators regularly trawl through federal court decisions looking for rebukes that went unreported.

OPR has investigated classified subjects in the past, including probing opinions written by former Justice Department lawyers John Yoo and Jay Bybee that provided a legal justification for using brutal interrogation techniques on terrorism suspects.

Director of National Intelligence James Clapper said in a statement last week that intelligence officials took "significant steps to address these issues" in 2009. In a court filing that year, Justice Department lawyers urged Walton not to hold government officials in contempt or to report them to investigators, saying that any incorrect information about the surveillance was the result of confusion within the NSA about the details of how its surveillance program worked and that the agency had "already self-reported" the matter to its own inspector general.

A spokeswoman for the NSA said she was unable to comment on what that investigation concluded.

Another surveillance court judge, John Bates, said in a classified order two years later that the government had given him incorrect information about the extent of an effort to monitor Internet traffic. "The court is troubled that the government's revelations regarding NSA's acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program," he wrote in a 2011 order that was declassified in August.

Walton, now the surveillance court's presiding judge, said in an e-mail that he has "no opinion" on whether the Justice Department should have conducted its own investigation. Bates declined to comment.